History of Executive Branch Authority in Immigration

Today, the Immigration Policy Center releases Using All the Tools in the Toolbox: How Past Administrations Have Used Executive Branch Authority in Immigration by Mary Giovagnoli, Esq. The paper examines the political battle over implementation of provisions of the Nicaraguan Adjustment and Central American Relief Act (NACARA) during the late 1990s.

It also looks at the role of executive branch authority during a key moment in the Bush Administration’s work on comprehensive immigration reform. Using the tools of executive branch authority, both the Clinton and Bush Administrations made the most of what the law had to offer, staying within the letter of the law, but opting for interpretations that reflected differing, but legally permissable, readings of the law. This lesson is worth recalling in the fight over prosecutorial discretion and administrative relief today.

The Department of Homeland Security’s (DHS) plan to review 300,000 immigration cases to assess whether they fall within the Administration’s enforcement priorities has already inflamed critics. Because the Administration may close some low priority cases in order to focus its limited resources on more serious cases, critics are immediately claiming this is an “amnesty.” But the DHS announcement is about using executive branch authority—in this case, prosecutorial discretion—to carry out its policy priorities.

The debate is not whether the President has the authority to revisit existing interpretations of laws. As the Bush Administration made clear, an administration has a duty to carry out the law to the best of its ability, which includes its interpretive ability. The Obama Administration has taken a first step in laying out clear guidance on prosecutorial discretion and forming a review committee, but it can’t stop there. Clear and transparent guidance on the implementation of the priority review process, and how that guidance will be implemented in making decisions about new cases, is needed and must be put out quickly.